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Thursday, August 25, 2016

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California. Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted. A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus. The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday. Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents. According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators. In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation. He also must register as a sex offender. Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege. Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said. “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

Tuesday, August 23, 2016

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). I received an email this morning highlighting a new big project and report from the the FPP. Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it. Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015. Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments. The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability. The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.

Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.

Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).

Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.

Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.

A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.

Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color. In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.

The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.

Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts. In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent.

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

Friday, August 19, 2016

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle." Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

"Overlooked: Women and Jails in an Era of Reform"

Since 1970, there has been a nearly five-fold increase in the number of people in U.S. jails — the approximately 3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. Despite recent scrutiny from policymakers and the public, one aspect of this growth has received little attention: the shocking rise in the number of women in jail.

Women in jail are the fastest growing correctional population in the country — increasing 14-fold between 1970 and 2014. Yet there is surprisingly little research on why so many more women wind up in jail today. This report examines what research does exist on women in jail in order to begin to reframe the conversation to include them. It offers a portrait of women in jail, explores how jail can deepen the societal disadvantages they face, and provides insight into what drives women’s incarceration and ways to reverse the trend.

This Vera fact-sheet provides this additional information about some of the report's various findings and themes:

Available research to help explain why women are increasingly incarcerated in U.S. jails is scarce, dated, and limited in scope. Nevertheless, general data about women in the criminal justice system provides clues about who these women are, and why they end up in jail. Like men in jail, they are disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.

The majority are charged with lower-level offenses—mostly property and drug-related—and tend to have less extensive criminal histories than their male counterparts. Unlike incarcerated men, women in jails are often primary caregivers to their young children—nearly 80 percent of women in jails are mothers, and most are single parents.

Once incarcerated, women must grapple with systems, practices, and policies that are designed for the majority of the incarcerated population: men. With limited resources, jails are often ill-equipped to address the challenges women face when they enter the justice system. As a result, many women leave jail with diminished prospects for physical and behavioral health recovery, with greater parental stress and strain, and in even more financially precarious circumstances than before becoming caught up in the justice system.

As interest in rolling back the misuse and overuse of jail increases, women frequently remain an afterthought in discussions about reform; yet the roots and trajectory of their increasing rate of jail incarceration demand further study. This report documents the existing foundation for reform that can potentially set the stage for further, well-crafted programs and practices to stem the flow of women cycling through the nation’s local jails.

Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases

This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting. Here are the details:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.

Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.

Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez. Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.

U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case. Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.

Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.

A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing. “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly. "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”

Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."

"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.

The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.

"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best." His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."

Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine. At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed. The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora. Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.

"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes. Walls said businesses that win contracts from government agencies should hold themselves to a higher standard. He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments. "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.

Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced. Prosecutors would not file "5K1.1" motions for them, she added.

Monday, August 08, 2016

Especially while traveling and being engaged with lots of other projects, I have not been able to keep up fully this summer with many lower federal court cases exploring the application of the Supreme Court's Johnson ACCA vagueness ruling to other comparable provisions of other federal sentencing statutes and guidelines. Helpfully, though, an en banc ruling by the Fifth Circuit late last week in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Aug. 5, 2016) (available here), provides something of a primer on developments in one notable context. Here is how the en banc majority opinion (per Judge Higginson) gets started and a key part of its analysis:

This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b), when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague....

The [textual] distinctions [in how “crime of violence” is defined in § 16(b)] mean that the concerns raised by the Court in Johnson with respect to Armed Career Criminal Act’s residual clause do not cause the same problems in the context of 18 U.S.C. § 16(b). While there might be specific situations in which 18 U.S.C. § 16(b) would be vague — although Gonzalez-Longoria does not suggest any in particular — it is certainly not a statute that “simply has no core.”

And here is how the dissenting opinion (per Judge Jolly) gets started and key parts of its analysis (with emphasis from the original):

I am in agreement with the majority’s framework for deciding this case. Specifically, I agree that Johnson “highlighted two features of the [Armed Career Criminal] Act’s residual clause that together make the clause unconstitutionally vague [and that] 18 U.S.C. § 16(b) shares these two features.” I also agree that “neither feature causes the same level of indeterminacy in the context of 18 U.S.C. § 16(b).” The majority, however, drifts from reason — and into the miasma of the minutiae — when it determines that these vagaries suffice to distinguish § 16(b) from the residual clause. Accordingly, I respectfully dissent....

I can agree that [a textual distinction] provides a shadow of difference, but hardly a constitutional sockdolager. This difference between the two statutes is particularly slight because, through judicial interpretation, § 16(b) not only contains an example, it contains the very example that most troubled the Johnson Court....

These statutes read extremely similarly. The majority of circuits to have considered the question have held that these two similar texts must suffer the same constitutional fate. The majority, engrossed by thinly sliced and meaningless distinctions, adopts the minority view and errs by losing track of the entirety: these statutes, in constitutional essence, say the same thing.

Friday, August 05, 2016

Are sex offender registries uniquely harmful to the LGBTQ community?

The question in the title of this post is prompted by this new Advocate commentary headlined "Injustice: How the Sex Offender Registry Destroys LGBT Rights." The piece is more focused on youths placed on registries than on the broader issues of registries and the LGBTQ community, but the article still highlights many important intersectional elements of age, sexual orientation and registries:

It’s hard to believe that until recently, there were still laws on the books that made it illegal to be gay. Our legal system may no longer explicitly prohibit same-sex relationships, but we have found new ways to criminalize queer kids. We label them as sex offenders.

Across the country, children are put on sex-offense registries for behaviors that range from “playing doctor” to streaking to having consensual sex with peers a few years apart in age. The statistics are scary: out of 800,000 people on registries, one out of four — more than 200,000 — are under the age of 18. A child as young as 8 years old can be labeled as a “deviant.” Additionally, initial investigations show a disproportionate number of these youth are queer.

To be clear, kids do commit serious harm. Regardless of the behavior, though, two decades of research have shown that registration does not reduce recidivism or prevent harm in the first place. And the LGBTQ disparity isn’t a reflection of justice — or public safety. It’s an indication of the implicit and explicit bias woven throughout the legal and welfare systems and all the more reason to make eliminating the practice of registering youth a priority.

A report, called "Give the Kid a Break — But Only if He’s Straight," found that LGBTQ young people are given harsher punishments than their straight, gender-conforming counterparts. In the study, participants suggested disciplinary consequences for an older teenager having sex with a 14-year-old. A 16-year-old straight culprit was much less likely to end up on the registry than a gay 16-year-old....

Even the laws themselves can be blatantly discriminatory. In the 2003 case Lawrence v. Texas, the Supreme Court struck down state bans on same-sex sodomy; however, Justice Anthony Kennedy’s majority opinion included this single negating phrase: “[the] present case does not involve minors, which this comment will refer to as “the minor exception.’” Kennedy was referring to adult-on-minor sexual conduct, but states have used it as a loophole. Texas law, for example, considers sexual contact with a minor under the age of 17 a felony, unless both participants are under 18, no more than three years apart, and they are of different sexes.

Once young people are on the registry, the trauma grows. Children are ostracized, socially isolated, and often physically banished from their homes and communities by child safety zones. Their life becomes a struggle for employment, and they must regularly check in with law enforcement; if they fail to report even a minor change in their lives, they can be sent to prison with a felony. LGBTQ youth in prison can also be both the targets of sexual abuse and homophobia. One out of five youth on the registry have attempted suicide. Queer youth already have high rates of suicide, so this adds to the risk.

The laws created to protect our children from harm have potential to be very harmful, potentially fatal, and definitely life-altering. Registering youth is contrary to public safety and a costly burden to law enforcement, but it is our LGBTQ youth who are paying the high prices. While they have shown great resilience and courage, this debt is not theirs to pay. As a society, we need to redress this miscalculation and eliminate youth registration laws.

Tuesday, August 02, 2016

"The Effects of DNA Databases on the Deterrence and Detection of Offenders"

The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Jennifer Doleac, Rasmus Landersø and Anne Sofie Tegner Anker. Here is the abstract:

Countries around the world use databases of criminal offenders' DNA profiles to match known offenders with crime scene evidence. The purpose is to ease police detection work and to increase the probability that offenders get caught if they reoffend, thereby deterring future criminal activity. However, relatively little is known about the behavioral effects of this law enforcement tool. We exploit a large expansion of Denmark's DNA database in 2005 to measure the effect of DNA profiling on criminal behavior. Individuals charged after the expansion were much more likely to be added to the DNA database than similar offenders charged just before that date.

Using a regression discontinuity strategy, we find that the average effect of the DNA database is a reduction in recidivism. By using the rich Danish register data, we further show that effects are heterogeneous across observable offender characteristics; it is mainly offenders initially charged with violent crime that are deterred from committing new crimes. We also find that DNA profiling has a positive detection effect, increasing the probability that repeat offenders get caught. Finally, we find evidence that DNA profiling changes non-criminal behavior: offenders added to the DNA database are more likely to get or remain married. This is consistent with the hypothesis that, by deterring future criminal behavior, DNA profiling changes an offender’s life course for the better.

When Matthew Grottalio was 10 years old, he and his older brother initiated a touching “game” with their 8-year-old sister. “None of us knew what we were doing,” he said, and he soon forgot about the episode. But later that year, 1998, his sister’s teacher found out and notified the authorities. Just weeks after Matthew’s 11th birthday, police officers handcuffed him outside his fifth-grade classroom.

Matthew and his parents agreed to a guilty plea in exchange for two years of probation, which he spent in a foster home. (His brother also pleaded guilty.) When he returned to his family, they were stunned to learn that he was listed on the Texas sex offender registry website, and would be for 10 years. He was just 13 years old. Neighbors threw a Molotov cocktail at his house and shot and killed his family’s dog. Local newspapers listed him by name along with adult sex offender “monsters” in the area.

He soon “hated life, hated everybody.” Their sons’ ordeals shattered their parents’ marriage of two decades. Matthew dropped out of high school, ran away, was homeless for two years, sank into drugs and served time for burglary and parole violations. His decade on the registry had ended by 2011, but internet searches continued to show him on the list — and still do. Even worse, his parole included restrictions suitable to a serial child rapist. He was barred from any unsupervised and unapproved contacts with people under 17, and from any contact with his sister, who was by then an adult. (She says she never considered him a threat.) He also was barred from contact with the children of the woman he married in 2013. Even contact with the baby the couple had together was in limbo until he passed a sex offender evaluation....

Mr. Grottalio’s story is not unusual. In about 40 states, juveniles are listed on sex offender registries, often for their entire lives. In about 19 states, there is no minimum registration age. Prepubescent children are listed along with violent adult sex criminals. While precise data is unavailable, it appears that as many as 24,000 of the nation’s more than 800,000 registered sex offenders are juveniles, and about 16 percent of that population are younger than 12 years old. More than one-third are 12 to 14....

In her career as a criminal defense lawyer for juveniles and a researcher on juvenile sex offenders, Nicole Pittman, now a vice president at Impact Justice, defended or reviewed about 2,000 juvenile sex cases. Most involved what she called “normative” sexual behavior and “experimentation.” Nevertheless, on many sex offender websites, there are juveniles’ photos, names and addresses, and even maps to their homes....

2006, about 32 states had sex offender laws registering juveniles. That year, the federal Adam Walsh Child Protection and Safety Act mandated, for the first time, that certain youths 14 and over be registered in the state where the violation occurred. (Once that happens, the person also goes on the national registry.) The law also said that offenses such as indecent exposure and public urination had to be included. At least six states now require juveniles to be on the register for life. Given that state and federal laws have grown into an often conflicting tangle of requirements and penalties, there can be no end to some kids’ ordeals....

The expansion of sex offender laws to include juveniles was based on the assumption that kids who sexually transgress cannot be reformed. However, research has shown this assumption to be false. Only 1 percent to 7 percent of children who commit sexual offenses will do it again — much lower than the 13 percent recidivism rates for adult sexual offenders.

The policy seems to succeed only in making life difficult for offenders, subjecting them to harassment and isolation. Of the more than 500 youth sex offenders whose cases Ms. Pittman examined, about 100 had attempted suicide.... Knowing this, prosecutors like Vicki Seidl, the senior lawyer in the juvenile division of the Kent County district attorney’s office in Michigan, now push for pleas that keep youths off registries. Other prosecutors are following suit.

But that alone will not solve the problem. Juveniles, particularly ones under 14, need to be off the registries entirely. In 2011, the Department of Justice relaxed the requirement for registering juveniles, but legislators still fear that they’ll be accused of being “soft” on sex crimes.

Saturday, July 30, 2016

A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein. The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:

A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.

The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.

Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.

The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.

The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.

“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”

Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.

UPDATE: A helpful reader sent me a copy of the full opinion in US v. DW for posting here: Download US v DW

Thursday, July 28, 2016

US Sentencing Commission releases big new report urging reform of career offender enhancements

As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:

Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”

Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.

In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment. These offenders were also more likely to receive a sentence below the federal sentencing guideline range.

Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016. Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”

How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?

The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:

Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....

On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.

"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.

Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.

Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...

The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."

But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."

As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....

Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....

Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.

But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....

Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.

Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....

Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."

"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...

The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.

Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."

Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."

Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."

The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.

"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."

Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...

Thomas is scheduled for trial Sept.13.

Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).

I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.

Wednesday, July 27, 2016

John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity

As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday." Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:

U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.

In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.

The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.

Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.

If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.

Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.

Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.

The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.

On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.

Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.

Here is the abstract for the first of these chapters which serves as an introduction to the book:

This chapter uses the global portrait of juvenile justice found in the rest of this volume — that includes chapters on juvenile justice in China, Europe, India, Latin America, Muslim-majority states, Poland, Scandinavia, South Africa, and South Korea and Japan — to discuss possible explanations for the almost ubiquitous existence of separate juvenile courts around the world. After briefly analyzing the role that power, emulation, and structural factors have played in the global diffusion of the juvenile court, we discuss what theory of juvenile courts may underlie their actual practices. We argue that the main function that juvenile courts have performed has been letting juvenile offenders grow up out of crime and that such a function also provides the best justification for the continuing existence of these courts.

Tuesday, July 19, 2016

Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in

As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice. Here are the interesting details concerning a rare (but not unprecedented) district court decision:

A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”

Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.

Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.

The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.

Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.

Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.

After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.

Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....

Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....

Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.

Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...

Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.

Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.

Monday, July 18, 2016

"Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons"

The title of this post is the title of this notable new report from the Center for American Progress. Here is an excerpt from the report's introduction:

America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure. We lock up a greater share of our citizens than any other developed nation, destroying lives and separating families at an annual cost of more than $80 billion. In addition, we do little to prepare individuals behind bars for their eventual release, yet are surprised when some two-thirds return to our jails and prisons.

The crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.

The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities — a shift often referred to as deinstitutionalization. The number of Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization was not accompanied by the public investment necessary to ensure that community-based alternatives were made available. As a result, while people with disabilities — and particularly those with mental health conditions — were no longer living in large numbers in institutions, many began to be swept up into the criminal justice system, often due to minor infractions such as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three times as many people with mental health conditions as state mental hospitals.

People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities — such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders — are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.

Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, as community-based treatment and prevention services cost far less than housing an individual behind bars. According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing — one of the most intensive, comprehensive, and successful intervention models in use today — amounts to less than $20,500 annually, just two-fifths the cost of jail.

Wednesday, July 13, 2016

Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing

In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools. Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge. The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:

In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."

Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.

Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing. Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....

Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.

The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "violates a defendant's right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment's scientific validity, or because COMPAS assessments take gender into account."

Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process. Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.

Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.

We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion.

Monday, July 11, 2016

PBS widely premiering sex offender documentary "Prevert Park"

As detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:

Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction. It looks like your average trailer park, but this is the place 120 residents call home. Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.

There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years. But the film offers a mindset-challenging look at this deeply stigmatized category of criminals. According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”

The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.

A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children. Will says he was “fondled by a babysitter when I was 6 years old.” As an adult, he exposed himself to a young girl and spent several years in jail.

A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.” She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son. According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....

Pervert Park raises significant questions. Should America give these criminals a second chance? And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?

“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney. Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case. “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”

“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst. These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives. And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.

“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence? If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”

First Circuit finds sentence enhanced based on a song (and thrice longer than guideline range) substantively unreasonable

Thanks to Howard Bashman at How Appealing, I did not miss the interesting First Circuit panel ruling in Alvarez-Núñez, No. 15-2127 (1st Cir. July 9, 2016) (available here), declaring an above-guideline sentence substantively unreasonable. Here are excepts from an opinion that has a wordy flair that would justify reading in full:

In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant. Concluding, as we do, that this line-blurring undermined the plausibility of the court's sentencing rationale (and, thus, rendered the sentence substantively unreasonable), we vacate and remand for resentencing....

Evidence extrinsic to the protected words or conduct may make clear that a performance or artistic work speaks to a defendant's motive, state of mind, or some other attribute in a way that is relevant to sentencing. In the absence of such extrinsic evidence, the mere fact that a defendant's crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.

Evidence that might support such an inference is conspicuously lacking in this case. Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle. Nor is there any basis for a claim that they are unlawful in any respect. By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder. The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant's involvement in any other criminal activity. To the contrary, the PSI Report — accepted in this regard both by the government and the district court — confirms that, at age 34, the defendant had no adult criminal history.

The district court's conclusions — that the lyrics and music videos comprised "objective evidence . . . that this [crime] was not a mistake," that they reflected that the defendant had a history of involvement "with firearms, with violence, [and] with murders," and that they made it likely that the defendant possessed the gun for nefarious purposes — thus rested entirely on naked inferences drawn from the content of the lyrics and music videos....

Taking the lyrics and music videos as "objective evidence" of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record. Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record cannot stand.

Thursday, July 07, 2016

"Can Obama Pardon Millions of Immigrants?"

When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”

However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”

The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....

It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....

President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.

Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.

President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.

Tuesday, July 05, 2016

The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:

Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.

Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.

There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.

But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.

Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.

As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.

“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.

Saturday, July 02, 2016

"Should a juvenile sex offender be locked up indefinitely?"

The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:

Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.

But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."

Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....

In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.

And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”

The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.

Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.

Tuesday, June 28, 2016

Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted

The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).

Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.

Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.

Saturday, June 25, 2016

"Trauma Informed Juvenile Justice"

The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.

Friday, June 24, 2016

Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals

A year ago, as first reported in this post and immediate follow-ups here and here, the Supreme Court in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." This morning's Washington Post has this effective (and well-timed) extended article, headlined "Local Small words, big consequences for possibly thousands of federal prisoners,"looking at the impact of that ruling now a year later. I recomment the piece in full, and here are excerpts:

Hundreds if not thousands of federal prisoners are likely to have their sentences shortened — and in some cases get immediate release — due to one of the final opinions written by Justice Antonin Scalia. Scalia’s little-noticed opinion focused on one phrase in federal law but has created uncertainty and upheaval for judges, prosecutors and defense attorneys facing a pile of prisoner requests to have their cases reviewed.

Federal inmates have until Sunday to try to challenge their prison terms after the Supreme Court labeled 12 words in the criminal code “unconstitutionally vague” in an opinion announced by Scalia last June, eight months before his death. The ruling eliminated a section of law that prosecutors relied on to seek stiffer penaltiesfor defendants they said were especially dangerous. Defense attorneys had decried the wording because it was used to brand too many defendants as violent....

For defense attorneys, the court’s decision provides a new avenue to challenge lengthy sentences for prisoners who received severe penalties for nonviolent offenses, such as resisting arrest. “It was a dumping ground,” said Amy Baron-Evans of the Sentencing Resource Counsel Project of federal public defenders. “It ended up sweeping in crimes that no one would think of as being violent.”

Filings from inmates are piling up in judicial chambers throughout the country. In Atlanta, one judge took the unusual step this spring of flagging the names of 110 prisoners from her district eligible to refile for shorter sentences to alert them to the deadline this month — one year from the date the Supreme Court decision was handed down. In Richmond last month, the U.S. Court of Appeals for the 4th Circuit, which covers Virginia, Maryland, West Virginia, North Carolina and South Carolina, received more than 500 filings for sentence reviews, according to the clerk’s office. In the same period last year, there were 18. More than 350 petitions have been filed in the 8th Circuit in St. Louis since May, contributing to a record number of filings in a single month....

The language overturned by the Supreme Court in the criminal code echoes in other parts of the justice system. Nearly identical words about career offenders appear in federal sentencing guidelines, which use a formula to give judges a recommended range of possible prison time for the defendants who come before them.

Federal public defenders and the U.S. Justice Department agree that the Supreme Court ruling negates those words in the guidelines for defendants sentenced since Scalia’s 2015 opinion. The Supreme Court separately is being asked to settle a dispute about whether inmates punished before the 2015 opinion should have another chance at sentencing.

The Justice Department says they should not, according to the government’s court filings. The judges who handed down those prison terms were not bound to a particular mandatory sentence and imposed what they thought were appropriate punishments that should stand, the government says. To the public defenders, that position is at odds with the Obama administration’s advocacy for clemency. If the court rules that the decision does apply retroactively to the guidelines, another 6,000 federal inmates sentenced between 1992 and 2015 could ask to have their prison time cut, according to an estimate from the public defenders’ sentencing project.

Prosecutors say “the sky is going to fall and all of these violent people are going to be let out,” said federal public defender Paresh Patel, who is handling appeals for the Maryland office. “People are not getting a windfall. They were wrongly sentenced as career offenders.”

Justice Department spokesman Patrick Rodenbush said the administration’s position is “fully consistent” with its clemency efforts. The guidelines apply “only to individuals convicted of specific crimes of violence and are wholly distinct from grants of clemency to drug offenders who have been vetted for public safety concerns.”

Prosecutors worry about the ripple effects of Scalia’s opinion. Inmates and their lawyers argue that the court’s decision to eliminate words in one law should stick to other areas of law with parallel language. These filings raise new questions about what types of crimes meet the technical definition of a “crime of violence” and how judges assess a person’s criminal past.

In response to the Supreme Court’s decision, attorneys for Dustin John Higgs in May asked the 4th Circuit for permission to challenge his death sentence. Higgs was sentenced in 2001 for ordering the murders of three young women in Beltsville. The women were shot to death on a desolate stretch of federal land near the Patuxent Wildlife Research Center. Higgs was convicted of using a firearm during a “crime of violence” — in this case kidnapping and murder....

Even if Higgs does not personally benefit, prosecutors say, a new interpretation in his case could upend plea agreements with others facing similar firearms counts. The uncertainty is already changing the way prosecutors draw up and negotiate charges.

The article states that "federal inmates have until Sunday to try to challenge their prison terms," based on the one-year statute of limitations in AEDPA for bringing 2255 collateral appeals following certain critical legal development. As the title of my post indicates, it seems clear that inmates serving ACCA sentences need to get Johnson claims filed now due to this statutory deadline. Less clear, though, is whether inmates eager to extend the reach of Johnson to the career offender guidelines or other statutes are subject to the smae deadline (and, as noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines). Also, I suppose, based on the right facts, equitable tolling arguments could be made (though probably would face an uphill battle) for any inmates who missed the AEDPA deadline for bringing Johnson claims in various settings.

Long story short, as I forecasted in some of the posts below right after the Johnson ruling last year, it seems all but certain that many thousands of inmates (and thousands of lawyers) are going to be having Johnson dreams or nightmares for many years to come.

Thursday, June 23, 2016

"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."

The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here). In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix. Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post:

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....

Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....

A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.

The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.

Another ACCA win for federal defendants in Mathis

The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants. Here is the start of the Mathis opinion for the Court authored by Justice Kagan:

The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.

Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.

Wednesday, June 22, 2016

"Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act"

The title of this post is the title of this interesting new report from the AVID Prison Project. (AVID stand for Amplifying Voices of Inmates with Disabilities, and its website provides more on the report and on the AVID Prison Project.) Here are excerpts from the report's executive summary:

The disproportionate incarceration of people with disabilities in the United States is a serious and growing problem. As the prison population ages, more inmates are reporting physical disabilities. The U.S. has also seen a rise in the number of people with mental illness and developmental and cognitive disabilities in prison. National surveys now indicate that as many as 31 percent of inmates in state prisons report having at least one disability.

While prison is hard for everyone, incarceration is even more challenging for inmates with disabilities. Research shows that inmates with disabilities are sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal convictions. The time they serve is also harder, with more sanctions imposed and less access to positive programming than other inmates. Prisoners with disabilities are also four times more likely to report recent psychological distress as compared to inmates without disabilities. In a system intended to control and sanction behavior believed to violate the many regulations that govern prison life, inmates with disabilities who need accommodations are often overlooked, ignored, or even punished.

Very few outsiders are allowed into the prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with special federal authority to enter facilities that serve people with disabilities, have been going behind prison walls to identify issues facing inmates with disabilities.

P&As have received reports of inmates forced to drag themselves across their cell or sleep on the floor because their cane or walker was removed. Inmates with cognitive disorders, intellectual disabilities, or mental illness have sought assistance because they are unable to complete the programming required to move out of restrictive housing, forcing them to remain in segregation for years, if not decades. These same inmates may be punished for failing to follow the written rules of the prison, rules they either cannot read or cannot understand due to a disability, resulting in sanctions, loss of good time, or even additional criminal charges. Inmates in need of therapeutic diets or those who require assistance in activities of daily living often find themselves caught in an endless cycle of institutional grievances and appeals as they seek approval for accommodations in correctional policy and practice.

In recognition of the growing population of inmates with disabilities, in 2012 Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a private grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.

This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.

This report begins with a brief overview of the P&A system, describes the different types of advocacy P&As use, and outlines the ADA’s application to prisons. Next, this report details the work P&As across the country have done to advance inmates’ rights under the ADA, focusing on three main areas of prison life: (1) hygiene, health, and safety, (2) accommodations in communication, and (3) access to programming and services. A review of this work reveals that while the ADA has been in place for more than 25 years, much remains to be done to bring programs and buildings in the nation’s prisons into compliance with the requirements of the ADA. This report concludes with a series of recommendations for future action....

Ultimately, this report is intended to spur interest and action within the P&A network and other prison advocacy groups and increase focus on what has become a crisis within the nation’s prison system.

Tuesday, June 21, 2016

Bureau of Justice Statistics releases new detailed report on recidivism of federal offenders

This official press release reports on some of the interesting highlights of this interesting new report from the Bureau of Justice Statistics about recidivism rates and patterns for federal offenders. The report is formally titled "Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010." Here is the text of the BJS press release on the report:

Of the nearly 43,000 federal offenders who were placed on federal community supervision in fiscal year 2005, an estimated 43 percent were arrested at least once within five years of their placement, the Bureau of Justice Statistics (BJS) announced today. An estimated 18 percent of these offenders were arrested at least once within one year of placement on community supervision and 35 percent were arrested at least once within three years of placement.

An estimated 80 percent of offenders who were placed on federal community supervision in 2005 were male. More than a third (41 percent) were white and nearly a third (31 percent) were black. An estimated 28 percent were age 29 or younger and about 42 percent were age 40 or older.

The first arrest offense for federal offenders after placement on community supervision varied by federal and nonfederal offenses. Among federal offenses, public order offenses, such as probation violations, accounted for 90 percent of first arrests of federal offenders after placement on community supervision, compared to 33 percent of first arrests for nonfederal offenses.

In comparing federal and state prisoners placed on community supervision, almost half (47 percent) of federal prisoners were arrested within five years, compared to more than three-quarters (77 percent) of state prisoners. Nearly a third (32 percent) of federal prisoners returned to prison within five years of their release to community supervision, compared to more than half (59 percent) of the state prisoners.

Other findings include —

Nearly a quarter (23 percent) of federal offenders on community supervision were directly sentenced to probation, while more than three-quarters (77 percent) began a term of community supervision following release from prison.

An estimated 70 percent of federal offenders on community supervision had at least one prior nonfederal arrest, and more than a third (35 percent) had four or more prior nonfederal arrests.

"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.

To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

Sunday, June 12, 2016

After most deadly mass shooting in US history, sadness and frustration and realism

The tragic news today from Orlando, which is already being identified as the worst mass shooting in US history, is not a sentencing story because the shooter apparently was killed by the police while on the scene of his horrible crimes. But, I feel compelled to blog about this horrific crime in order to express my deep sadness. I also have to express my frustration that, no matter what I or others have to say, the circumstances of this horrific crime will likely engender political and social discussions that may just deepen divisions among Americans who cannot help but want to "do something" and yet rightly struggle to figure out just what can be done about man's inhumanity to man.

Friday, June 10, 2016

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year. I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one. Not that one either. Or that. Now you’re trying my patience. Can we just agree it’s a prettycommoncasecaption? And indeed, this case has been up to the Court once before. The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision. During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void. On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense. During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review. Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.” Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....

Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Wednesday, June 08, 2016

"My brain made me do it: will neuroscience change the way we punish criminals?"

The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience. Here are excerpts:

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals. Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment. According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...

[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour. Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment. According to Greene and Cohen, this will make crime reduction the only goal. If they are right, punishment practices will move in the direction advocated by Eagleman.

Greene and Cohen made their argument about the demise of retributivism ten years ago. In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence. We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain. Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender. It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert. It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury". The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....

We cannot be sure how neuroscience will affect the law in future. Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations. This means retributivism is still alive and well, and just punishment still matters to Australian courts. So, at least for now, the impact of neuroscience is not revolutionary.

Tuesday, June 07, 2016

Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter

The discussion of last week's lenient sentencing of a former Stanford University student convicted of multiple counts of sexual assault (basics here) has continued to generate notable mainstream and new media stories. Here is a round up of reads some of the latest reads that I found interesting:

From Shuan King at the New York Daily Newshere, "Brock Turner and Cory Batey, two college athletes who raped unconscious women, show how race and privilege affect sentences"

I also thought worth reprinting was this comment from "Joe R" deep into the comment thread of my last post about this controversial case:

Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.

Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it. This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent. He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics. “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote. “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation. In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one. The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too. (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing). What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient. If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea.

US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group

I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:

Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.

The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.

The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:

The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:

(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;

(2) Including in USSG §1B1.1 a definition of “court protection order;”

(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;

(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and

(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

The TIAG also recommends that the Commission support changes in federal law and practice including:

(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;

(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;

(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;

(4) Better training of federal employees who work in Indian country about Native American history and culture; and

Sunday, June 05, 2016

The title of this post is the title of this notable new article by David Kaye now available via SSRN. Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment ban on cruel and unusual punishment precludes capital punishment for intellectually disabled offenders. Death-penalty states responded with laws defining intellectual disability in various ways. In Hall v. Florida, the Court narrowly struck down the use of a measured IQ of 70 to mark the upper limit of intellectual disability because it created “an unacceptable risk that persons with intellectual disability will be executed.” But the Court was unclear if not inconsistent in its description of an upper limit that would be acceptable. Four dissenting Justices accused the majority not only of misconstruing the Eighth Amendment, but also of misunderstanding elementary statistics and psychometrics.

This article uses more complete statistical reasoning to explicate the Court’s concept of unacceptable risk. It describes better ways to control the risk of error than the Court’s confidence intervals, and it argues that, to the extent that the Eighth Amendment allows any quantitative cut score in determining an offender’s intellectual disability, these more technically appropriate methods are constitutionally permissible.

Friday, June 03, 2016

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings. And here we have another example: this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana. Here are excerpts:

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump. As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts. If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Saturday, May 28, 2016

Michael Perlin, whose interesting scholarship on mental health criminal always includes an extra-fun Bob Dylan reference in the title, has these two notable new articles on capital prosecutions now available via SSRN:

Thursday, May 26, 2016

Today seems to be a specical day for big states to have their Supreme Court's issue big rulings concerning the sentencing of juve murderers after Miller. I noted in this prior post a ruling from the Florida Supreme Court in this arena, and now I have seen that the California Supreme Court also did some work in this space via California v. Franklin, No. S217699 (Cal. May 26, 2016) (available here). Here is the start of the majority opinion in Franklin:

Defendant Tyris Lamar Franklin was 16 years old at the time he shot and killed another teenager. A jury convicted Franklin of first degree murder and found true a personal firearm-discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, so Franklin‘s total sentence was life in state prison with the possibility of parole after 50 years.

After Franklin was sentenced, the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence," including Caballero‘s term of 110 years to life. (Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-life sentence under these authorities.

We granted review to answer two questions: Does Penal Code section 3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he receive a parole hearing during his 25th year of incarceration? If not, then does the state‘s sentencing scheme, which required the trial court to sentence Franklin to 50 years to life in prison for his crimes, violate Miller‘s prohibition against mandatory LWOP sentences for juveniles?

We answer the first question in the affirmative: Penal Code sections 3051 and 4801 — recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin‘s case.

The title of this post is the title of this notable new paper authored by Beth Caldwell now available via SSRN. Here is the abstract:

This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison. It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.

The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014. In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population. Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison. At the same time, it does not go far enough. After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings.

Monday, May 23, 2016

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases. But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana. The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery. The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed. In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole. It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future. In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same). There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.) Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.” Roper, 543 U.S., at 571. As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:

[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.

White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”

Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)

Friday, May 20, 2016

Fascinanting press report about fascinating prisoners and public health report suppressed in 2006

This new USA Today article, headlined "Quashed report warned of prison health crisis," reports on a significant public health report that was suppressed by the Bush Administration a decade ago. Here are the interesting details:

A government report, blocked from publication a decade ago, presciently warned of an advancing, double-barreled health crisis of mental illness and substance abuse that has currently swamped the nation’s vast prison systems.

The 2006 document, prepared by then-Surgeon General Richard Carmona, urged government and community leaders to formulate a treatment strategy for thousands of sick and addicted inmates that also would assist them after release or risk worsening public health care burdens. “This (report) has demonstrated that, far from being geographically and metaphorically separated from the community as was the case with Alcatraz Island, correctional facilities and those who pass through them are an integral part of the larger community," Carmona wrote in the document titled, “The Surgeon General’s Call to Action on Corrections and Community Health."

The 49-page report, Carmona said, was quashed at the time by George W. Bush administration officials who feared that such an acknowledgement would require a financial commitment that the administration was not willing to make.

Both Carmona and Roberto Potter, who served as an editor of the document while then-detailed to the surgeon general's staff from the Centers for Disease Control and Prevention, said the decision to quash the report was relayed to them through Department of Health and Human Services officials they did not identify. "It was what they call a top-drawer veto," said Potter, now a criminal justice professor at the University of Central Florida. "We missed one of those teaching moments. When something like this goes out under the surgeon general's seal, it really carries a lot of weight."...

More than a decade after the prison report was completed, local, state and federal officials are struggling to address the same health emergency — now in full bloom — that was outlined in the pages of the surgeon general's warning. "We deny the American public essential information that they need when this information is suppressed," Carmona said. "We missed an opportunity to take appropriate action to protect the public health."

In addition to mental illness and substance abuse, the report also highlighted concerns about the prevalence of infectious and chronic diseases, urging government officials to invest in a strategy that "could build on the positive outcomes of correctional health care in ways that would benefit the larger community" when inmates are released back into society. While substance abuse was identified as "the most prevalent ailment" among inmates, the report found that mental illness was up to three times higher within U.S. jails and prisons that in the general public. "The nation's largest mental health facilities are in large urban jails," the report stated.

I’ve always been known as a tough-on-crime, pro-law enforcement individual, and I still am. During my years as a North Carolina State Senator, I vigorously advocated for the death penalty. As a superior court judge, I presided over trials where the death penalty seemed like the only suitable punishment for the heinous crimes that had been committed. Finally, as a Justice, and then as Chief Justice, on the Supreme Court of North Carolina, I cast my vote at appropriate times to uphold that harsh and most final sentence.

After decades of experience with the law, I have seen too much, and what I have seen has impacted my perspective. First, my faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes....

Last year in America, over half of the individuals that were executed had severe mental impairments. Too much reliance is put on jurors to identify those who are the “worst of the worst.” As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.

In order for mitigation evidence to be considered it must be collected and introduced at trial. In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.

Additionally, a number of impairments are difficult to measure. For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.

The categorical exclusions for juveniles under the age of 18 and those with intellectual disability are simply drawn too narrowly to encompass everyone who has diminished culpability. These categorical exclusions are particularly inadequate when multiple impairments exist....

After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants. These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime. Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot.

Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?

This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles. The piece's full headline highlights its themes: "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics." Here is how the piece started (with links from the original):

Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.

But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.

Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.

Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.

“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”

Wednesday, May 18, 2016

"Sentencing phase: did heredity play part in serial killer’s crimes?"

It is often said that the sins of the father should not befall the son, but an on-going capital case in Ohio suggests that at least one defendant is hoping the sins of his father and grandfather and great-grandfather might help keep him off death row. The title of this post is the headline of this local story which provides these details:

Was heredity to blame for the violent crimes of convicted serial killer, Michael Madison? A Cuyahoga County jury was presented with that possibility in the courtroom of Judge Nancy McDonnell on Tuesday.

Dr. Mark Cunningham, a clinical and forensic psychologist from the state of Washington, testified heredity was an aspect of sexual offending. "There is patterning within these family systems,” he said, “They found that having a brother or father who had been convicted of a sexual offense increased the odds of being convicted of a sexual offense four to five fold.”

Cunningham prepared a diagram showing the history of Madison’s family dating back to his great-grandfather. The chart illustrated how the serial killer’s relatives preyed on each other physically and sexually, including their own children. Social Service records and interviews with Madison’s family revealed he was abused for years by his mother and her boyfriends.

"The way that he was treated is the template of how he then goes about interacting with others throughout his life,” said Cunningham, “It's a core principle that the FBI's behavioral science unit identified as they looked at the histories of sexual homicide offenders and observed that the quality of attachments to parents and other members of the family during childhood is central to how the child will relate to and value other members of society.”

The 37-year-old was convicted of raping and murdering Angela Deskins, Shetisha Sheeley and Shirellda Terry, all of East Cleveland. Their bodies were found near his East Cleveland apartment in July of 2013.

Wednesday, May 04, 2016

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article. The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis. Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend. She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand." Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse. When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case. Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs. In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing. Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders. Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration. He recommended that Thuesen be granted a new punishment-phase trial. The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty? An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center. But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion." Juveniles receive such treatment, as do those with mental disabilities. In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service." In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence. "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence. To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

Tuesday, May 03, 2016

A helpful reader alerted me to a notable Eighth Circuit panel ruling today in US v. Martinez, No 15-1004 (8th Cir. May 3, 2016) (available here). Here is how the majority opinion gets started and a few notable substantive statements:

Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines (U.S.S.G.) and sentenced him to 262 months' imprisonment. It indicated, alternatively, it would sentence Martinez as a career offender even if he was not a career offender. Martinez appeals, arguing he is not a career offender and his sentence is substantively unreasonable.

The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2557 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise — that the district court's alternative sentence is substantively unreasonable — we reverse and remand for resentencing....

We infer from [a sentencing] statement that the district court believed the escape conviction was a crime of violence — and Martinez was a career offender — whether the guidelines classified it as a crime of violence or not. In other words, the district court sentenced Martinez to an additional nine years because, as a nineteen-year-old, Martinez threw an elbow at a police officer without striking the officer and ran from police for a short distance. This severe variance is unreasonable.

The district court's other justifications do not support the degree of the upward variance either. First, Martinez's convictions do not warrant such a severe upward variance. Martinez's two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points....

Second, the evidence the government presented relating to Martinez's gang ties does not justify a nine-year upward variance either. The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration. He also appeared with other East Side Locos gang members in photographs. While these photos and videosshow Martinez's gang ties, they do not depict Martinez actively engaging in any violent behavior. And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.